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widely an intelligent acceptance of its decisions is spread, the less likely is any sovereign state to disregard it; for, though it be quite true, as we have just said, that the only appeal against a sovereign decision is to the sword, yet the acceptance of any law by mankind, and especially by the most moral and enlightened portion of mankind, gives great practical force to it, and an intelligent public opinion may be said almost to constitute that court of appeal which it would be so desirable to see interposed between a headstrong belligerent and the law of justice.

In the case of the Trent, this intelligent acceptance of previous decisions, as evidenced in the remonstrances addressed to the Federal Government by other neutrals than ourselves, who were the immediate parties to the dispute, no doubt played an important part in the pacific settlement of the affair; and the remonstrances of the Emperors of Austria, France, and Russia, and of the King of Prussia and the Queen of Spain, seemed almost to constitute the sentence of a court of review. But it would be greatly to exaggerate the excellent effect of these solemn appeals to law and usage, if we were not to attribute the sulky, truculent, and ungracious compliance of Mr. Lincoln's cabinet with our demands to the visible and near prospect of war. The remonstrances of neutral powers no doubt had their effect; but we suspect that it was the half-drawn sword which really and materially inclined the balance to the side of justice.

Another incident in the American war shortly afterwards fixed public attention in England, and was made the subject of remonstrance by Lord Russell, through Lord Lyons, to the Federal Government. This incident comes immediately under our consideration in treating of blockades. We allude to the attempted closing of the entrance to Charleston harbour by sinking vessels laden with stones in the main and only deep channel to the port. It was objected to by Lord Russell as an act of cruelty which would seem to imply despair of success in the restoration of the Union; as a measure purely of revenge and irremediable injury to an enemy; as a plot against the commerce of nations, and worthy only of barbarous times. Mr. Seward answered in effect by traversing the main fact. It was altogether a mistake,' he said, 'to suppose that this plan had been devised with a view to injure the harbour permanently. It was simply a temporary measure, adopted to aid the blockade. The Government of the United States had last spring, with a navy very little prepared for so extensive an operation, undertaken to blockade

upwards of 3000 miles of coast. The Secretary of the Navy had reported that he could stop up the 'large holes' by means of his ships, but that he could not stop up the 'small ones.' It had been found necessary, therefore, to close some of the numerous small inlets by sinking vessels in the channels. It would be the duty of the Government of the United States to remove all these obstructions as soon as the Union was restored. . . . At the end of the war with Great Britain that Government had been called upon to remove a vessel, . . . and had recognised the obligation... Vessels had been sunk by the rebels to prevent the access to their ports of the cruisers of the United States. The same measure has been adopted by the United States in order to make the blockade complete. When the war was ended, the removal of all these obstructions would be a mere matter of expense; there would be no great difficulty in removing them effectually.'

It is not worth while to enquire into the truth of these allegations of fact. It may be that the Federals had only stopped up some "small holes," and not the main channel from the sea to the port of Charleston, and that the Confederates had adopted a similar system of defence there or elsewhere; but supposing that the facts were as originally represented by Lord Russell, and triumphantly, if rather vindictively, proclaimed by the Northern press, and that the port of Charleston had been destroyed, it may be worth while to consider how far such an act would have been allowable by the law of nations.

We must first observe that the claim set up by Bynkershoek and Wolf that every thing-fraud, poison, and the murder, as we should call it, of prisoners and unarmed persons-done against an enemy, is lawful, would not, if allowed, -and we are far from allowing it-settle the question. The dominion of the land, and the sovereign disposal of its inhabitants, are for those who may win them. The charity of the Christian and the chivalry of the soldier may reprove such acts as the devastation of the Palatinate by Lewis XIV., or the submersion of such vast tracts of country as have lately been laid under water in Louisiana. In such acts of ferocity neutrals are only indirectly concerned; but the case is otherwise where any act touches on the rights of neutrals to the free navigation of the high seas, which belong to no one. Territorial sovereignty extends so far out at sea as may ensure the undisturbed dominion of the land. This has been fixed by custom at three miles from the coast; but only because that distance has been thought sufficient for the

purpose. This sovereignty cannot, however, be exercised to the detriment of the use of the high seas by neutrals; and this use of the high seas involves the asylum of harbours.

In point of fact, the rights of a blockading belligerent cease before the fury of the elements, and a neutral has the right to enter a blockaded port for necessary shelter, and to avoid destruction. In presence of a danger in no degree due to the will of man, whether neutral or belligerent, the law of nations, in the interest of humanity, and in deference to a higher power, restrains belligerent rights, and allows to neutrals the chance of safety. By the destruction of a natural channel to a port the belligerent at once attacks this right of asylum, and, so far, the right to the use and enjoyment of the high

seas.

If it be averred, as between two belligerents, that the blockaded enemy had himself resorted to similar expedients, this is no defence for a like act on the part of the blockader. For those who defend what they possess have larger rights than those who attack the possessions of others. If Holland might cut her dykes and lay waste her territory, that precedent will not cover the Federal attempt to submerge Louisiana, and substitute the dynasty of crocodiles for the reign of man. An act may be lawful, even heroic, in self-defence, which the universal sentiment of civilised men would condemn as diabolical on the part of an invader. It is the larger right of self-defence than of attack which permits reprisals by acts in themselves unlawful. Thus, had the Federals carried out their threat of executing the captain and crew of a privateer which they had captured, and the captain and crew of which were prisoners of war, this would have been murder; but the Confederates would have been justified in hanging an equal number of prisoners, or, if necessary, a larger number, by way of reprisals, i. e. in self-defence, and to prevent the repetition of similar crimes.

This no doubt assumes that the law of nations is the expression of natural justice, and that the rights of belligerents against each other have some natural limit, in harmony with the dictates of conscience and the natural sentiments of humanity. On our side is Grotius with respect to the fundamental principle, and the conclusion deduced from it as to the limit to belligerent rights. Vattel also agrees with the conclusion, though he bases it on another theory. Wolf and Bynkershoek set no limit to the destructive powers of a belligerent. We appeal from them to the practically universal opinion of mankind. If the intention or animus of such acts

as the destruction of natural harbours, and the submersion of reclaimed and civilised territories, be admitted to be malicious, and not really directed to the acquisition or recovery of rights, and if it be also admitted that the law of nations is either directly founded on the natural perception of right and wrong, or, being only in harmony with conscience, is derived from considerations of utility, it must be also admitted that malice, which is neither right nor useful, must carry the taint of its illegality into any exercise of it. But if the motive of such acts is alleged to be not malice but the permissible desire of obtaining an end which is legitimate as judged by the law of nations, they must still be condemned on the ground that they are bad in themselves, as directly depriving neutrals, in the case of the destruction of harbours, of one of their rights, and as directed against the well-being of mankind, in the destruction of the use of the land by the human race, in the case of the actual and direct submersion of fertile tracts of country.

A discussion of some interest will probably shortly arise in our courts of law as to how far neutral traders are bound by the law of nations to respect a blockade, and whether, if English traders break it or attempt to break it, they are by the common law acting within the limits of legality.

There is no doubt that a neutral sovereign is bound to stand by and permit the vessels of his subjects to be searched, captured, and, if the owners are convicted of any act incurring such penalty, confiscated. The neutral sovereign is bound not to assist them in such acts, nor to step in to shelter them from their consequences. Such acts as are infractions of the law of nations relating to blockades incur penalties which it is the right of the belligerent to exact; but the vessel must be taken in delicto, and during the continuance of the blockade, or no penalty can be exacted. We see, then, that by the law of nations itself, there is no penalty, and so no right of capture, for having run a blockade-for an offence which is past and completed. The offence is the present intention, and some act in course of being done in furtherance of the intention. When the act is done, and the intention successfully carried out, no stain of illegality remains. The further question arises, whether the intention to break a blockade, and an act in furtherance of the intention, is an offence against the municipal law, or such a wrong as imposes any penalty or legal disability on the trader who commits it.

No one, we believe, has ever pretended that by our municipal law any penalty as for an offence is incurred by a trader who breaks, or attempts to break, a blockade; but it seems to have been assumed in our courts of law that the act is illegal, and entails all the consequences of illegality as respects contracts.

Sir Joseph Arnould is as express as possible on the point as applied to the contract of insurance. "It is an invariable principle," he says, "of the law of nations, that if a neutral violates a blockade. . . . he is guilty of an offence against the laws of war, and thereby renders his ship and cargo liable to confiscation." So far, so good; but he adds, "all insurances, consequently, upon voyages or trading adventures commenced or carried out with a fixed purpose of violating, or in actual violation of, the laws of blockade are wholly void and incapable of being enforced."

In the case of Harratt v. Wise,15 a policy of insurance on goods to a foreign port had been effected after notice in the London Gazette that that port was in a state of blockade. The ship had sailed before this notice, and had touched at a port at which the blockade was known. She was captured by the blockading squadron, and the insured brought an action against the underwriters for the loss. The plaintiff obtained a verdict at Nisi Prius; and the defendant obtained a rule nisi for a nonsuit, on the ground that the policy was illegal, having been effected after notice of the blockade, and in contravention of the law of nations. The court held that, unless it were proved that the master had knowledge of the blockade,the policy was good. In this case it seems to have been assumed all through, that if the master had known of the blockade, the insured could not have recovered. But the point was not argued.

In the case of Winder v. Wise,16 at Nisi Prius, the circumstances were similar, except that there was evidence that, after sailing, the master had heard of the blockade. The attorney-general, for the plaintiff, declined to go to the jury on the facts, and, after an intimation from the court that a vessel which heard of a blockade during her voyage could not proceed to the blockaded port, elected to be nonsuited. Here again illegality was assumed, not argued.

In Naylor v. Taylor," it was distinctly held by the court

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